ken, the distinction between criminals and combatants is fairly clear, as are the reasons why they are treated differently. Carl's distinction is a nice rhetorical flourish that doesn't stand up to scrutiny.
War is the legal use of organized violence on the part of one state or group against another. The instruments of violence--soldiers--follow orders. Unless they commit an universally repugnant crime such as genocide, soldiers cannot be held criminally responsible for using violence against enemy combatants or their resources in a formal or informal conflict. In other words, they do not possess the status of criminals under the Geneva Convention and international law so long as they conduct warfare along prescribed methods. Hence, their incarceration is not deemed punitive. They are simply assets of a nation at war that have suffered the misfortune of having been captured.
Naturally, emotions run high during warfare and POWs run the risk of being mistreated. The Geneva Convention recognizes these risks; it is the more or less global effort to make sure that prisoners of war are treated humanely while the conflict lasts.
Though there are exceptions (and rules under the Convention) for criminal behavior taking place after a POW is captured, POWs are not accorded the procedural rights given to criminals under domestic law because they are not deemed under international law to be criminals. Simple as that.
Criminal behavior, on the other hand, involves activity in derogation of social mores designed to protect a society from what it considers to be acts that are destructive to it. If the crimes involve violence, they are in usurpation of the state's monopoly on the regulation and execution of violent acts.
Our system requires a high level of proof in order to punish those who commit crimes. International law does not accuse POWs of a crime; they are not to be to be punished for following lawful orders. Since they are merely in captivity until the conflict is resolved and are entitled to repatriation at the end of the conflict, their only rights are to be treated humanely according to the terms of the Convention, assuming of course that the POWs' country is a signatory, while they are in custody and made unavailable as assets to be used against the capturing power.
The terrorists and AQ cannot claim the benefits of the Geneva Convention because no country has said that the Gitmo POWs are their combatants so as to invoke the terms of the Convention. I don't think any will. Despite this, I think they are probably being given the equivalent treatment required by the Convention.
Since we are at war with terror, at least informally, I think we are well within our rights to take away these enemy assets during the time the conflict exists so that they cannot be used against us. I don't think we need to accuse them of a crime.
The legal problem I see is defining when this ill-defined conflict ends so that they may be repatriated. I see it as a problem they have brought upon themselves. The equities certainly favor keeping these guys in captivity so as to prevent them from acting against us.
To sum up a wordy post, the reason POWs are not treated as criminal defendants is that they are not generally considered criminals under international law. Why the need to counsel, bail, to a trial by a jury of their peers, and all the rest of the procedural safeguards we afford criminal defendants, if there is no criminal accusation and no punishment imposed upon them other than the legally sanctioned incarceration during the time the conflict exists? |
